IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-408

Filed 05 July 2023

Buncombe County, No. 14 CRS 5011

STATE OF NORTH CAROLINA

v.

KYLE ALLEN BURRIS, Defendant.

Appeal by defendant from judgment entered 11 August 2021 by Judge 

Jacqueline D. Grant in Buncombe County Superior Court. Heard in the Court of 

Appeals 8 March 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Phillip 

T. Reynolds, for the State.

Kimberly P. Hoppin for the Defendant.

DILLON, Judge.

Defendant Kyle Allen Burris appeals from a judgment entered upon a jury 

verdict convicting him of driving while impaired and reckless driving to endanger. 

We conclude that Defendant received a fair trial, free of reversible error.

I. Background

On the evening of 22 November 2014, a law enforcement officer responded to a 

single-vehicle accident in Buncombe County. Upon arriving at the scene, the trooper 

saw a pickup truck off the right side of the road. The vehicle was up against a steel 
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fence and had sustained extensive damage. The trooper found Defendant lying 

trapped under the steel fence outside the vehicle. Defendant was unresponsive and 

appeared to suffer from severe injuries. He was bleeding excessively. He smelled of 

alcohol. The trooper found open beer cans, both inside and outside the vehicle. 

Defendant was eventually taken to the hospital, still unconscious, while the trooper 

remained at the scene. The trooper was able to determine that Defendant was the 

owner of the vehicle, and there was no evidence at the scene that anyone else was 

riding in the vehicle when the wreck occurred.

Defendant was convicted by a jury in superior court for driving while impaired 

and reckless driving to endanger. Defendant timely appealed.

II. Analysis

Defendant raises two issues on appeal, which we address in turn.

A. Evidence That Defendant Was Driving the Vehicle

Defendant makes two arguments concerning the evidence that he was, in fact, 

driving the wrecked vehicle.

First, Defendant contends the trial court erred when it allowed certain 

evidence showing the trooper believed Defendant driving the vehicle when it wrecked. 

This argument pertains to both Defendant’s driving while impaired conviction and 

his reckless driving to endanger convictions, both of which required the State to prove

that Defendant was driving the vehicle when the wreck occurred.

We agree that the trooper’s opinion testimony that Defendant was the driver 
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was inadmissible because the trooper did not personally observe Defendant driving 

the vehicle. See N.C. Gen. Stat. § 8C-1, Rule 701 (2021) (Lay testimony is generally 

confined to a witness’s personal observations); State v. Fulton, 299 N.C. 491, 494, 263

S.E.2d 608, 610 (1980) (stating that “[o]rdinarily opinion evidence of a non-expert 

witness is inadmissible because it tends to invade the province of the jury.”)

However, we conclude the admission of the trooper’s opinion testimony does 

not constitute reversible error in this case. In so holding, we note the trial court gave 

a curative instruction regarding the trooper’s opinion testimony. Specifically, the 

trial court expressly stated that the officer would be permitted to talk about what he 

observed during his post-crash investigation of the scene, but that he would not be 

permitted to “conclusively say [Defendant] was the driver”. The trial court instructed 

the jury to disregard the trooper’s opinion testimony, stating:

The Court is going to sustain the defendant’s objection to 

the extent [the officer] has referred to the defendant as “the 

driver.” The jury is to disregard any testimony referring to 

the defendant as “the driver”, because that’s actually an 

issue that you will decide as the jury.

See State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991) (“When the trial 

court withdraws incompetent evidence and instructs the jury not to consider it, any 

prejudice is ordinarily cured.”)

Further, assuming the trial court’s curative instruction was insufficient, 

Defendant has failed to establish that he was prejudiced by the officer’s statement, 

as Defendant failed to object to other evidence tending to show the trooper believed 
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Defendant to be the driver. See State v. Delau, 381 N.C. 226, 237, 872 S.E.2d 41, 48 

(2022) (holding that any error in allowing an officer to testify about the driver’s 

identity was not prejudicial when the warrant application admitted without objection 

contained the same information, the officer’s conclusion that the defendant was 

driving). For example, Defendant did not object when the State offered the trooper’s

“Affidavit and Revocation Report” as evidence, which contained multiple references 

to Defendant as the driver.

Second, Defendant argues the trial court erred when it denied Defendant’s 

motion to dismiss the charges for insufficient evidence showing Defendant was the 

driver. To survive a motion to dismiss, there must be substantial evidence of each 

essential element of the crime and that the defendant is the offender. State v. 

Winkler, 368 N.C. 572, 574, 780 S.E.2d 824, 826 (2015). When considering the motion, 

evidence must be considered in the light most favorable to the State, and the State is 

entitled to every reasonable inference. Id. at 574, 780 S.E.2d at 826.

We conclude there was sufficient evidence from which the jury could find that 

Defendant was driving the vehicle when the crash occurred. In addition to the State’s 

exhibits which were not objected to which described Defendant as the driver, there 

was evidence that Defendant was found alone at the accident scene and that 

Defendant was the owner of the vehicle. See, e.g., State v. Ray, 54 N.C. App. 473, 475, 

283 S.E.2d 823, 825 (1981) (“It is possible that other circumstantial evidence – such 

as ... evidence as to the [defendant’s] ownership of the automobile – in addition to the 
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testimony of the officer [finding the defendant alone in a vehicle that was running]” 

would be sufficient to meet the State’s burden of showing the defendant was driving 

the vehicle). When viewed in the light most favorable to the State, we conclude that 

the evidence was sufficient to survive Defendant’s motion to dismiss.

B. Warrantless Blood Draw

At trial, the jury was instructed it could convict Defendant of drunk driving 

solely on the grounds that Defendant’s blood alcohol level was above the legal limit. 

N.C. Gen. Stat. § 20-138.1(a)(2) (2021). It was on this ground that Defendant was 

convicted of this charge. Defendant argues the trial court erred by denying his motion 

to suppress the warrantless blood draw, the results of which were the only evidence 

that his blood alcohol level exceeded the legal limit.

The evidence concerning the blood draw showed that Defendant was 

transported to the hospital, that the trooper went directly to the hospital after 

completing his work at the crash scene, and that the trooper obtained a blood sample 

from Defendant while Defendant remained unconscious.

Blood tests are considered a search under both the federal and North Carolina 

constitutions. Schmerber v. California, 384 U.S. 757, 767 (1966). Accordingly, “blood 

draws may only be performed after either obtaining a warrant, obtaining valid 

consent from the defendant, or under exigent circumstances with probable cause.” 

State v. Romano, 369 N.C. 678, 692, 800 S.E.2d 644, 653 (2017).

Here, the trooper did not obtain a warrant prior to obtaining a blood sample 
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from Defendant at the hospital.

Also, Defendant did not give express consent for the blood draw as he was 

unconscious throughout. Our General Assembly, however, has provided that a driver 

has given implied consent to a blood draw when he is found unconscious and there is 

reasonable grounds to suspect that he has been driving while impaired. N.C. Gen. 

Stat. § 20-16.2(b) (2021). Our Supreme Court has limited the scope of this statute by 

holding that the Fourth Amendment is violated when an unconscious driver is 

deemed as consenting to a blood draw based on this implied consent statute for 

purposes of an impaired driving prosecution. See Romano, 369 N.C. at 691, 800 

S.E.2d at 652 (stating that Section 20-16(b) is not “a per se categorical exception to 

the warrant requirement.”)

We, therefore, consider whether there were sufficient exigent circumstances to 

justify the trooper’s action in not first obtaining a warrant before obtaining a draw of 

Defendant’s blood. Our resolution of this issue is controlled by the recent United 

States Supreme Court decision in Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019).

Mitchell, decided two years after our Supreme Court decided Romano, 

concerned the constitutionality of a warrantless blood draw from an unconscious 

motorist suspected of impaired driving in a state with an implied consent statute 

similar to our implied consent statute.

A four-judge plurality of the Court in Mitchell - sidestepping the issue as to 

whether prosecutors can rely on an implied consent statute to show consent by an 
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unconscious driver to a blood draw – held that exigent circumstances “almost always”

exist to conduct a warrantless blood draw where an unconscious driver is taken to 

the hospital1:

Thus, exigency exists when (1) BAC evidence is dissipating 

and (2) some other factor creates pressing health, safety, or 

law enforcement needs that would take priority over a 

warrant application. Both conditions are met when a 

drunk-driving suspect is unconscious []: With such 

suspects, too, a warrantless blood draw is lawful.

... [U]nconsciousness does not just create pressing needs; 

it is itself a medical emergency. . . . Police can reasonable 

anticipate that . . . [the defendant’s] blood may be drawn 

anyway, . . . and that immediate medical treatment could 

delay (or otherwise distort the results of) a blood draw 

conducted later, upon receipt of a warrant, thus reducing 

evidentiary value.

* * *

When police have probable cause to believe a person has 

committed a drunk-driving offense and the driver’s 

unconsciousness or stupor requires him to be taken to the 

hospital or similar facility before police have a reasonable 

opportunity to administer a standard evidentiary breath 

test, they may almost always order a warrantless blood test 

to measure the driver’s BAC [blood alcohol content] 

without offending the Fourth Amendment.

1 The plurality opinion, authored by Justice Alito, garnered the votes of three other justices. 

Justice Thomas concurred in the judgment. Justice Thomas argued that the natural metabolism of 

alcohol in the blood means that exigent circumstances are present whenever someone is suspected of 

driving under the influence of alcohol. Mitchell, 139 S. Ct. at 2539-41 (Thomas, Justice concurring). 

Because Justice Alito’s opinion is based on a narrower ground, it represents the Court’s holding. See 

Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no 

single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may 

be viewed as that position taken by those Members who concurred in the judgments on the narrowest 

grounds....’” (quoting Gregg v. Georgia, 428 U.S.153, 169 n. 15 (1976) (plurality opinion))).
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Id. at 2537-39. The Court, though, remanded that case to allow the defendant a 

chance to show his was the “unusual case” that would require a warrant, seemingly 

placing on the defendant the burden to make this showing where the State proves 

that the defendant was unconscious and needed treatment at a hospital:

We do not rule out the possibility that in an unusual case 

a defendant would be able to show that his blood would not 

have been drawn if police had not been seeking BAC 

information, and that police could not have reasonably 

judged that a warrant application would interfere with 

other pressing needs or duties. Because [the defendant] did 

not have a chance to attempt to make that showing, a 

remand for that purpose is necessary.

Id. (emphasis added). In remanding the case, the Court was not saying that a 

defendant has the initial burden to prove a lack of exigent circumstances. The Court 

recognized the State has this burden of showing exigency but was stating that the 

State meets this burden by showing the defendant was unconscious and in need of 

medical attention at a hospital. The Court then simply recognized that, where the 

State makes this showing, the defendant should have the opportunity to offer 

evidence of other facts to show a lack of exigency. See State v. Mitchell, 404 Wis.2d 

103, 110-15 (2022) (after remand from the United States Supreme Court, Wisconsin 

intermediate appellate court concludes the defendant failed to meet his burden of 

showing his was an unusual case); McGraw v. State, 289 So.3d 836, 839 (Fla. 2019) 

(Florida Supreme Court remands so “[the defendant] can be given the opportunity to 

demonstrate” his was an unusual case which required a warrant); Peoples v. Eubanks, 
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160 N.E.3d 843, 864 (2019) (Illinois Supreme Court interprets Mitchell as stating “in 

cases where the “general rule” applies, the burden shifts to defendant to establish a 

lack of exigent circumstances.”) But see State v. Key, 848 S.E.2d 315, 316 (South 

Carolina Supreme Court refusing to shift the burden to the defendant to show his to 

be an unusual case).

In the case before us, the trial court’s findings show the State met its burden 

of showing exigency under Mitchell. It found in its written order that Defendant was 

unconscious and badly injured at the crash scene when the trooper arrived; the 

trooper spent an hour investigating and securing the scene during which Defendant 

was transported by ambulance to a hospital; the trooper then went directly to the 

hospital; and Defendant had been sedated and was still unconscious when the trooper 

arrived. Further, the trial court stated from the bench:

As [the officer] testified, [Defendant] had become 

unresponsive. That his injuries were such [the officer] was 

concerned that he would probably have to undergo surgery, 

and it could even possibly lead to a fatality. And in those 

circumstances, the blood alcohol evidence would dissipate 

as more time passed. You don’t know how long the 

defendant would have been in surgery, what additional 

medical treatment would have been rendered. And as a 

result of that, that would have created exigent 

circumstances that the Court finds not taking the time to 

go get a warrant from the magistrate’s office, not knowing 

how long that will take, depending on when the magistrate 

was available, what’s going on with the jail.

So the Court finds that exigent circumstances existed, 

which justified getting the blood draw from the defendant. 

So again, the motion to suppress is denied.
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However, we conclude that the matter need not be remanded. The Mitchell Court 

remanded the case before it to allow the defendant a chance to offer evidence

“[b]ecause [the defendant] did not have a chance to attempt to make that showing 

[that his was an unusual case].” See Mitchell, 139 S. Ct. at 2539. Here, though, the

record shows Defendant did have that opportunity, as the Mitchell case was discussed 

at length at the hearing. And, on appeal, Defendant does not cite Mitchell or 

otherwise make any argument that he was not afforded the opportunity to make the 

showing at the hearing. We, therefore, conclude that the trial court did not commit 

reversible error by allowing the results of the warrantless blood draw into evidence.

NO ERROR.

Judges GORE concurs.

Judge TYSON concurs in part and dissents in part with separate opinion.
No. COA22-408 – State v. Burris

TYSON, Judge, concurring in part and dissenting in part.

I concur with the majority’s holding the trial court erred by allowing the state 

trooper, as a lay witness, to testify Defendant was the driver of the vehicle for either 

charge, because the trooper never observed Defendant drive, being seated behind the 

wheel, or even present inside of the vehicle. This error was cured by the trial judge’s 

instruction to disregard this testimony.

The trial court erred in denying Defendant’s motion to suppress the 

Defendant’s blood alcohol concentration (“BAC”) level, derived solely from the 

warrantless blood draw without the State proving probable cause and exigent 

circumstances, and where the jury was instructed solely on Defendant’s BAC level as 

evidence to support Defendant’s guilt. I respectfully dissent.

III. Fourth Amendment

The Fourth Amendment of the Constitution of the United States guarantees: 

“The right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the persons or things to be 

seized.” U.S. Const. amend. IV. (emphasis supplied).

The Supreme Court of the United States ruled:

The interests in human dignity and privacy which the 

Fourth Amendment protects forbid any such intrusions on 

the mere chance that desired evidence might be obtained. 
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TYSON, J., concurring in part and dissenting in part

2

In the absence of a clear indication that in fact such 

evidence will be found, these fundamental human interests 

require law officers to suffer the risk that such evidence 

may disappear unless there is an immediate search.

Schmerber v. California, 384 U.S. 757, 770, 16 L. Ed. 2d 908, 919 (1966).

“The [Fourth] Amendment thus prohibits ‘unreasonable searches,’ . . . [and] 

the taking of a blood sample . . . is a search.” Birchfield v. North Dakota, 579 U.S. 

438, 455, 195 L. Ed. 2d 560, 575 (2016) (citations omitted). Accord State v. Carter, 

322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988).

The Supreme Court of North Carolina has held: “drawing blood . . . constitutes 

a search under both the Federal and North Carolina Constitutions.” State v. Romano,

369 N.C. 678, 685, 800 S.E.2d 644, 649 (2017) (citations omitted). “[B]lood draws may 

only be performed after either obtaining a warrant, obtaining valid consent from the 

defendant, or under exigent circumstances with probable cause.” Id. at 692, 800 

S.E.2d at 653.

The Supreme Court of the United States further held: Blood tests: (1) “require 

piercing the skin and extract[tion of] a part of the subject’s body”; (2) are “significantly 

more intrusive than blowing into a tube”; and (3) place in the hands of law 

enforcement “a sample that can be preserved and from which it is possible to extract 

information beyond a simple BAC reading.” Birchfield, 579 U.S. at 463-64, 195 L. Ed. 

2d at 580 (citations and internal quotation marks omitted).

Our Supreme Court adopted and interpreted the test in Schmerber, as 
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TYSON, J., concurring in part and dissenting in part

3

“forbidding law enforcement authorities acting without a search warrant from 

requiring a defendant to submit to the drawing of a blood sample unless probable 

cause and exigent circumstances exist to justify a warrantless seizure of the blood 

sample.” State v. Welch, 316 N.C. 578, 587, 342 S.E.2d 789, 794 (1986) (citing Winston 

v. Lee, 470 U.S. 753, 84 L. E. 2d 662 (1985) (clarifying how North Carolina courts 

construe the Schmerber factors). Without probable cause and exigent circumstances, 

or another exception to the warrant requirement, a warrantless search violates the 

Fourth Amendment to the Constitution of the United States and Article One, Section 

Nineteen of the North Carolina Constitution, and any evidence illegally obtained 

must be excluded. Id.; U.S. Const. amend. IV; N.C. Const. art. 1, § 19.

The Supreme Court of the United States in Schmerber also explained the 

Fourth Amendment’s warrant requirement is not a mere formality, but requires 

necessary judgment calls that are made “by a neutral and detached magistrate,” and 

not “by the officer engaged in the often competitive enterprise of ferreting out crime.” 

Schmerber, 384 U.S. at 770, 16 L. Ed. 2d at 919 (citation and quotation marks 

omitted). This default Constitutional requirement for and specificity of a warrant, 

and the further prohibition against General Warrants, serves as bulwark protections 

of individual liberties against warrantless searches and seizures, which violate the 

Fourth Amendment. A warrant issued “by a neutral and detached magistrate” also 

ensures a police officer is not the sole interpreter of the Constitution’s protections and 

an individual’s “interests in human dignity and privacy” are protected. Id.
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4

A search conducted without a warrant is “per se unreasonable under the 

Fourth Amendment—subject only to a few specifically established and welldelineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 

585 (1967) (citations and footnotes omitted). “In the absence of a warrant, a search 

is reasonable only if it falls within a specific exception to the warrant requirement.” 

Riley v. California, 573 U.S. 373, 382, 189 L. Ed. 2d 430, 439 (2014) (citation omitted). 

The narrow exception of probable cause and exigent circumstances to the warrant 

requirement is necessarily limited. The burden to prove necessity and exigency to 

proceed without a warrant remains on the State and does not shift to Defendant. See 

Welsh v. Wisconsin, 466 U.S. 740, 749-50, 80 L. E. 2d 732, 743 (1984) (“Prior decisions 

of this Court, however, have emphasized that exceptions to the warrant requirement 

are ‘few in number and carefully delineated,’ and that the police bear a heavy burden 

when attempting to demonstrate an urgent need that might justify warrantless 

searches or arrests.” (internal citations omitted)).

The record and testimony show the trooper took an hour or two to complete his 

work at the scene before going directly to the hospital to confront Defendant. The 

trooper stated he went to the hospital, rather than a magistrate for a warrant, 

because Defendant might be headed into surgery. Upon arrival at the hospital, he 

located and “advised” the injured and unconscious Defendant of his chemical analysis 

rights for a Breathalyzer and asserted he could not perform a breath test on 

Defendant.
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5

The trial court found exigent circumstances existed to deny Defendant’s motion

to suppress by holding:

[T]he blood alcohol evidence would dissipate as more 

time passed. You don’t know how long the defendant would 

have been in surgery, what additional medical treatment 

would have been rendered. And as a result of that, that 

would have created exigent circumstances that the Court 

finds justifies not taking the time to go get a warrant from 

the magistrate[’s] office, not knowing how long that will 

take, depending on when the magistrate was available, 

what’s going on with the jail.

So the Court finds that exigent circumstances 

existed, which justified getting the blood draw from the 

defendant. So, again, the motion to suppress is denied.

None of these factors, individually or collectively, excuse the requirement of a 

warrant. “[T]he natural dissipation of alcohol in the bloodstream does not constitute 

an exigency in every case sufficient to justify conducting a blood test without a 

warrant.” Romano, 369 N.C. at 687, 800 S.E.2d at 656 (citation and internal 

quotation marks omitted).

The majority’s opinion cites Mitchell v. Wisconsin, 588 U.S. __, 204 L. Ed. 2d 

1040 (2019), which neither party argues nor relies upon in their briefs, to support its 

conclusion. None of those facts or conditions in Mitchell support their result to allow 

the needle-extracted, unrestricted search under these facts to allow “a sample that 

can be preserved and from which it is possible to extract information beyond a simple 

BAC reading.” Birchfield, 579 U.S. at 463-64, 195 L. Ed. 2d 560, 566-67. “[N]o 

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and 
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TYSON, J., concurring in part and dissenting in part

6

particularly describing the place to be searched, and the persons or things to be seized.” 

U.S. Const. amend. IV (emphasis supplied). 

The majority’s opinion unconstitutionally shifts the burden onto the Defendant 

to prove the default necessity of a warrant! The Fourth Amendment guarantees and 

mandates the requirement of a warrant, and their analysis of the narrow warrantless 

search exception becomes: why do you need a detached neutral magistrate upon 

“probable cause, supported by Oath or affirmation” to issue a specified search warrant 

before your bodily fluids are extracted and removed from your body, while injured, 

unconscious, and without restrictions? That result simply cannot be what the 

Founders and Framers intended. Schmerber, 384 U.S. at 770, 16 L. Ed. 2d at 919 

(explaining necessary judgment calls are to be made “by a neutral and detached 

magistrate,” and not “by the officer engaged in the often competitive enterprise of 

ferreting out crime”). 

The Bill of Rights was demanded to amend the Constitution to protect 

individuals from the interference and overreach of government officials, and, most 

specifically, to protect the privacy and rights of individuals, particularly those 

unconscious or utterly incapable, like infants and incompetents, of asserting their 

rights or providing informed consent. See Patrick M. Garry, Liberty Through Limits: 

The Bill of Rights as Limited Government Provisions, 62 SMU L. REV. 1745, 1757 

(2009) (“In the view of the Anti-Federalists, the Bill of Rights would set ‘limits’ and 

build ‘barriers’ against government abuse or enlargement of its powers. The purpose 
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TYSON, J., concurring in part and dissenting in part

7

of the Bill of Rights would be to limit the exercise of delegated powers, thus providing 

a second limitation on the power of government. . . . But the Bill of Rights placed 

limits on even those enumerated powers, forbidding the federal government from 

using its enumerated powers to encroach on areas protected by the Bill of Rights.”); 

Olmstead v. United States, 277 U.S. 438, 478, 72 L. Ed. 944, 956 (1928) (Brandis, J., 

dissenting) (stating the Founders “conferred, as against the Government, the right to 

be let alone – the most comprehensive of rights and the right most valued by civilized 

men”).

IV. Fifth Amendment

A law enforcement officer giving warnings and reading “rights” to an injured 

and unconscious person at a hospital, who is utterly incapable of understanding and 

giving informed consent, prior to demanding and compelling medical personnel to 

draw his blood without his knowledge is the height of hypocrisy. This warrantless 

blood extraction makes a mockery of both the Fourth Amendment’s protections of “the 

right of the people to be secure in their persons” and the prohibitions “against 

unreasonable searches and seizures.” U.S. Const. amend. IV.

The Fifth Amendment’s right against self-incrimination, and Miranda

warnings of the individual’s “right to remain silent” were instituted to avoid 

compelled interrogations and testimony or evidence derived from “General Warrants” 

or warrantless searches. “No person shall be . . . compelled in any criminal case to be 

a witness against himself, nor be deprived of life, liberty, or property, without due 
STATE V. BURRIS

TYSON, J., concurring in part and dissenting in part

8

process of law. U.S. Const. amend. V. While the Supreme Court of the United States 

has held “that forcing drunk-driving suspects to undergo a blood test does not violate 

their constitutional right against self-incrimination,” the Supreme Court also 

demanded a “blood test” must be based upon probable cause and ordered by a 

detached and neutral magistrate’s warrant. Mitchell, 588 U.S. at __, 204 L. E. 2d at 

1046 (citing Schmerber, 384 U.S. at 765, 16 L. Ed. 2d at 917).

“[T]hese fundamental human interests require law officers to suffer the risk 

that such evidence may disappear unless there is an immediate search.” Schmerber, 

384 U.S. at 769-70, 16 L.Ed.2d at 919. The Supreme Court of North Carolina agreed 

and has also held: “[T]he natural dissipation of alcohol in the bloodstream does not 

constitute an exigency in every case sufficient to justify conducting a blood test 

without a warrant.” State v. Romano, 369 N.C. 678, 687, 800 S.E.2d 644, 656 (2017) 

(quotation marks omitted) (quoting Missouri v. McNeely, 569 U.S. 141, 165, 185 L. 

Ed. 2d 696, 715 (2013)).

The fact that a suspect fell unconscious at some point or was going into surgery 

does not equate to insufficient time for the trooper to seek and demonstrate probable 

cause to obtain a warrant. If an officer has the time to secure a warrant prior to the 

blood draw, “the Fourth Amendment mandates that they do so[,]”and the burden of 

the officer’s failure to do so rests upon the State. McNeely, 569 U.S. at 152, 185 L. 

Ed. 2d at 707 (citation omitted).

The trooper testified, and the trial court found, the trooper did not obtain a 
STATE V. BURRIS

TYSON, J., concurring in part and dissenting in part

9

warrant because there might be a line and he might have to wait on a magistrate to 

review his sworn affidavit for probable cause and application to issue the warrant. 

That is the point of requiring a warrant. The trooper’s assertion is sheer conjecture. 

Even if true, no evidence was presented by the State to support this “reason” or 

“exigency” for failing to secure a warrant. 

Presuming probable cause existed, exigent circumstances did not require an 

immediate warrantless blood draw, since the hospital would have already drawn 

Defendant’s blood for typing and tests upon arrival. See State v. Scott, 278 N.C. App. 

354, 861 S.E.2d 892 (2021) (involving blood samples taken upon defendant’s arrival 

at the hospital and picked up a week after being drawn). 

Additionally, the possibility of Defendant’s death during surgery did not 

provide an exigency. If deceased, Defendant would not have been charged in any 

event. 

The trial court’s finding to support denial of Defendant’s motion to suppress 

was:

As [the trooper] testified, [Defendant] had become 

unresponsive. That his injuries were such [the trooper] 

was concerned that he would probably have to undergo 

surgery, and it could even possibly lead to a fatality. And 

in those circumstances, the blood alcohol evidence would 

dissipate as more time passed. You don’t know how long 

the defendant would have been in surgery, what additional 

medical treatment would have been rendered. And as a 

result of that, that would have created exigent 

circumstances that the Court finds justifies not taking the 

time to go get a warrant from the magistrate[’s] office, not 
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TYSON, J., concurring in part and dissenting in part

10

knowing how long that will take, depending on when the 

magistrate was available, what’s going on with the jail. 

All these stated reasons, considered individually or together, are pretextual to avoid 

the Fourth Amendment’s requirement for a warrant. McNeely, 569 U.S. at 152, 185 

L. Ed. 2d at 715 (explaining that if the police have time to secure a warrant before 

the blood draw, “the Fourth Amendment mandates that they do so”). 

The purported possibility the magistrate might be delayed, Defendant’s 

unconsciousness, or possibility of BAC dissipation does not excuse the trooper’s 

inaction and does not create an exigent circumstance to justify the trooper’s failure 

to seek a warrant or to order or compel a medical professional to act contrary to 

Defendant’s rights. The burden to show probable cause and the reasons for the 

absence of a warrant rests upon the State, not the Defendant. That burden does not 

shift. The State’s evidence and this finding does not support the trial court’s denial 

of Defendant’s motion to suppress. Defendant’s arguments have merit.

V. The State’s Burden on Remand

The majority’s opinion cites Mitchell’s purported exception to warrantless 

exigent circumstances exception by quoting: “We do not rule out the possibility that 

in an unusual case a defendant would be able to show that his blood would not have 

been drawn if police had not been seeking BAC information, and that police could not 

have reasonably judged that a warrant application would interfere with other 

pressing needs or duties.” Mitchell, 588 U.S. at __, 204 L. Ed. 2d at 1052 (emphasis 
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TYSON, J., concurring in part and dissenting in part

11

supplied). The burden to explain and show the absence of a warrant rests solely upon 

the State, not the Defendant, and judging the affidavit and application for a warrant 

and probable cause rests solely with the neutral detached magistrate, not the officer. 

Schmerber, 384 U.S. at 770, 16 L. Ed. 2d at 919 (explaining judgment calls are to be 

made “by a neutral and detached magistrate,” and not “by the officer engaged in the 

often competitive enterprise of ferreting out crime”). 

I agree with the Supreme Court of South Carolina’s refusal, upon very similar 

facts, to apply Mitchell in a manner to purportedly shift the burden onto a defendant 

to show his to be an unusual case to challenge the warrantless extraction of his blood. 

State v. Key, 848 S.E.2d 315, 316 (S.C. 2020) (“We have carefully considered the 

Mitchell holding and conclude we will not impose upon a defendant the burden of 

establishing the absence of exigent circumstances. We hold the burden of 

establishing the existence of exigent circumstances remains upon the State.”). Accord

McDonald v. United States, 335 U.S. 451, 456, 93 L. Ed. 153, 158 (1948) (“We cannot 

be true to that constitutional requirement and excuse the absence of a search warrant 

without a showing by those who seek exemption from the constitutional mandate that 

the exigencies of the situation made that course imperative.”); United States v. 

McGee, 736 F.3d 263, 269 (4th Cir. 2013) (“The government bears the burden of proof 

in justifying a warrantless search or seizure.”).

The State’s brief and the trial court’s findings concede the trooper had 

completed his work on the scene and avoided seeking the warrant from the 
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TYSON, J., concurring in part and dissenting in part

12

magistrate because he did not want to wait in line or he pre-supposed the magistrate 

may be busy with other cases, the alcohol evidence may dissipate, and Defendant 

might die. None of these assertions or findings are exigent to supplant nor excuse 

the mandate of a warrant “supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be seized.” U.S. 

Const. amend. IV. 

VI. Constitutional Error Standard of Review

“[B]efore a federal constitutional error can be held [to be] harmless, the court 

must be able to declare a belief [the error] was harmless beyond a reasonable doubt.” 

Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11 (1967). See also

Davis v. Ayala, 576 U.S. 257, 267, 192 L. Ed. 2d 323, 332-33 (2015); N.C. Gen. Stat. 

§ 15A-1443(b) (2021). 

The burden falls “upon the State to demonstrate, beyond a reasonable doubt, 

that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b). See also Brecht v. 

Abrahamson, 507 U.S. 619, 630, 123 L. Ed. 2d 353, 368 (1993); Chapman, 386 U.S. 

at 24, 17 L. Ed. 2d at 711; State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331 

(2012).

The General Assembly adopted the standard in Chapman and stated the 

General Statutes of North Carolina “reflects the standard of prejudice with regard to 

violation of the defendant’s rights under the Constitution of the United States, as is 

set out in the case of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. E. 2d 
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TYSON, J., concurring in part and dissenting in part

13

705 (1967).” N.C. Gen. Stat. § 15A-1443 cmt. (2021).

“When violations of a defendant’s rights under the United States Constitution 

[sic] are alleged, harmless error review functions the same way in both federal and 

state courts.” State v. Ortiz-Zape, 367 N.C. 1, 13, 743 S.E.2d 156, 164 (2013) (quoting 

Lawrence, 365 N.C. at 513, 723 S.E.2d at 331). See also State v. Autry, 321 N.C. 392, 

399, 364 S.E.2d 341, 346 (1988) (“[Pre]suming arguendo that the search violated 

defendant’s constitutional rights and that the evidence therefrom was improperly 

admitted at trial, we find any such error in its admission harmless beyond a

reasonable doubt.”).

Our Supreme Court also deemed the assertion an unconscious driver has 

consented to a blood draw based on this implied consent statute for purposes of an 

impaired driving prosecution to violate the Fourth Amendment. See State v. Romano, 

369 N.C. at 691, 800 S.E.2d at 652-53 (stating that NC Gen. Stat. § 20-16(b) is not “a 

per se categorical exception to the warrant requirement”).

The sole basis upon which the jury was instructed to find Defendant guilty of 

driving while impaired was his BAC level, the result of which was only obtained 

because of a warrantless blood sample taken without his knowledge or consent and 

while he was injured and unconscious.

The jury was not instructed on any other statutory grounds of appreciable 

impairment. While the State’s other evidence of odor and beer cans on the scene may 

have been sufficient to survive a motion to dismiss, the State failed to establish that 
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TYSON, J., concurring in part and dissenting in part

14

the erroneous admission of Defendant’s BAC evidence, the only basis submitted to 

the jury, was harmless beyond a reasonable doubt. Defendant’s conviction for driving 

while impaired is properly reversed.

VII. Reckless driving to endanger

The majority and I agree the trooper’s testimony asserting Defendant was the 

driver was inadmissible. Lay witness testimony is generally confined to a witness’ 

personal observations. N.C. Gen. Stat. § 8C-1, Rule 701 (2021); State v. Lindley, 286 

N.C. 255, 257, 210 S.E.2d 207, 209 (1974) (stating that “[o]pinion evidence is generally 

inadmissible ‘whenever the witness can relate the facts so that the jury will have an 

adequate understanding of them and the jury is as well qualified as the witness to 

draw inferences and conclusions from the facts[ ]’ ” (citations omitted)). “[O]pinion

evidence of a non-expert witness is [generally] inadmissible because it tends to invade 

the province of the jury.” State v. Malone-Bullock, 278 N.C. App. 736, 740, 863 S.E.2d 

659, 664 (2021) (citation and internal quotation marks omitted). 

The majority and I also agree the trial court cured any improper testimony 

when it gave the jury the following curative instruction: 

The Court is going to sustain the defendant’s objection to 

the extent [the trooper] has referred to the defendant as 

“the driver.” The jury is to disregard any testimony 

referring to the defendant as “the driver”, because that’s 

actually an issue that you will decide as the jury.

Our Supreme Court has held that where a trial court sustains an objection and 

instructs the jury to disregard improper testimony, any prejudice is normally cured. 
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TYSON, J., concurring in part and dissenting in part

15

State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991) (“The defendant 

objected[,] and his objection was sustained. The trial court then instructed the jury 

to disregard the statement. When the trial court withdraws incompetent evidence 

and instructs the jury not to consider it, any prejudice is ordinarily cured.” (citation 

omitted)).

Defendant’s charges of reckless driving to endanger does not ipso facto arise 

solely from Defendant’s purported driving while impaired. Reckless driving to 

endanger is not a lesser-included offense of DWI. N.C. Gen. Stat. § 20-141.6(d) (2021) 

(“The offense of reckless driving under G.S. 20-140 is a lesser-included offense of the 

offense set forth in this section.”). Some additional evidence, such as excessive speed 

or a passenger endangered by being located in the vehicle, is required. N.C. Gen. 

Stat. § 20-140(b) (2021) (providing that “[a]ny person who drives any vehicle upon a 

highway or any public vehicular area without due caution and circumspection and at 

a speed or in a manner so as to endanger or be likely to endanger any person or 

property shall be guilty of reckless driving.”); see State v. Dupree, 264 N.C. 463, 466, 

142 S.E.2d 5, 7 (1965) (“The mere fact that defendant’s automobile was on the left of 

the center line in the direction it was traveling when the collision occurred, without 

any evidence that it was being operated at a dangerous speed or in a perilous manner, 

except being on the wrong side of the road some 40 feet before the collision, does not 

show on defendant’s part an intentional or wilful [sic] violation of G.S. [§] 20-

140(b)[.]”). Without lawful evidence of Defendant’s BAC, nor additional evidence of 
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TYSON, J., concurring in part and dissenting in part

16

Defendant’s “reckless driving to endanger,” both of Defendant’s convictions are 

properly vacated. 

The failure to suppress the BAC, derived solely from extracted blood from a 

warrantless search, was erroneous and was not harmless beyond a reasonable doubt. 

On remand, the BAC evidence from the warrantless search should be suppressed and 

excluded from the jury. I respectfully dissent.